Citation NR: 9804147
Decision Date: 02/11/98 Archive Date: 02/17/98
DOCKET NO. 97-22 171 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUES
1. Entitlement to an increased evaluation for residuals of a
left forearm injury, currently evaluated as 10 percent
disabling.
2. Entitlement to a total disability rating based on
individual employability by reason of service-connected
disabilities.
ATTORNEY FOR THE BOARD
D. L. Smith, Associate Counsel
INTRODUCTION
The veteran had active service from June 1956 to July 1957.
This appeal is before the Board of Veterans’ Appeals (Board)
from a March 1996 determination of the Manila, Philippines,
Department of Veterans Affairs (VA) Regional Office (RO).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the severity of his left forearm
disability is not represented by his current disability
evaluation. The veteran argues that his service-connected
disability prevents him from engaging in any gainful
occupation.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the record supports a grant of
entitlement to an increased evaluation of 20 percent for
residuals of a left forearm injury. It is also the decision
of the Board that the veteran has not met the criteria for a
total disability rating based on individual unemployability
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained.
2. The veteran’s left forearm disability is manifested by
limitation of pronation beyond the middle of arc.
3. The probative medical evidence shows that the residuals
of a left forearm injury are manifested by malunion of the
ulna and radius without bad alignment, limitation of
extension of the elbow to 45 degrees, and flexion of the
elbow limited to 110 degrees.
4. There were no exceptional or unusual circumstances
present in the veteran’s case that would have warranted a
referral to the Director of the Compensation and Pension
Service.
5. The veteran’s service-connected disability does not
preclude all forms of substantially gainful employment; he is
not unemployable solely as a result of his service-connected
disability.
CONCLUSIONS OF LAW
1. The criteria for an increased schedular evaluation of
20 percent for the residuals of a left forearm injury have
been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 4.40, 4.45, 4.71a, Diagnostic Code 5213 (1997).
2. The criteria for a total disability rating based on
individual unemployability by reason of service-connected
disabilities have not been met. 38 U.S.C.A. §§ 1155, 5107(a)
(West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a), (b)
(1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
The record shows that the veteran fractured the middle third
of both the ulna and radius when he slipped and fell on the
date of his discharge on July 8, 1957.
An April 1975 VA examination report shows that the veteran
was right handed as determined by signature.
A June 1994 statement from a private physician shows a
diagnosis of rheumatoid arthritis with respect to the
veteran’s complaints of left forearm, arm, and shoulder pain.
A July 1994 statement from a private physician shows that he
had treated the veteran since 1991. The statement shows that
the veteran had complained of off-and-on numbness, weakness
of the left arm and forearm, associated with occasional pain
and limitation of motion. The veteran also complained of
aggravation of the symptoms from lifting, and sudden climate
changes.
An August 1994 private report of examination shows complaints
of numbness, weakness, atrophy of the muscles, and limitation
of movement of the left extremity. The examiner noted
atrophy of the left upper extremity based upon the
measurement of the middle third of the left forearm of 24
centimeters relative to 27 centimeters on the right. The
left wrist measured 17 centimeters, and 18.5 on the right.
The diagnosis was atrophy of the muscles of the left upper
extremity due to peripheral nerve supply deficiency, and
post-trauma left arm deformity. Medication was reported as
Nurobion Tabs, one capsule, 2 times daily; Ascorbic acid, 250
milligrams, one tablet, two times a day; and multivitamins,
one capsule daily. The examiner opined that the veteran
could no longer engage in any gainful work because his
disability was becoming worse.
A September 1995 statement from a private physician shows
that he had treated the veteran since November 1994 to the
present for pain of the left arm and forearm which radiated
up to the veteran’s shoulder. He also noted that the veteran
was treated for hypertension.
An October 1994 VA examination report shows a diagnosis of
healed midshaft fracture of the left radius and ulna with
traumatic arthritis of the elbow. The examiner noted
slightly tender scars, flexion of the left elbow of
120 degrees, and no neurological deficiency.
Received in October 1995 was an application for increased
compensation based on unemployability. The veteran reported
that he had completed six years of grade school and four
years of high school. It is unclear whether he meant to
indicate that he had also completed four years of college.
The appellant indicated that he had last worked in October
1992. He did not report the nature of his previous
occupational experience. He indicated that he had not tried
to seek any employment.
The veteran underwent a VA examination in November 1995. The
veteran reported pain over the middle portion of the left
forearm. The report shows that the veteran stopped working
as a driver about five years prior. Physical examination
revealed a scar on the left forearm which was nontender nor
painful on objective demonstration. The examiner found no
evidence of peripheral neuropathy, or evident injury to the
muscles, except for the type secondarily involved with a
fracture.
The examiner noted slight deformity of the left forearm
manifested by slight angulation. Flexion of the left elbow
was 160 degrees. The examiner found a 15 degree fixed
flexion deformity. The diagnoses were healed midshaft
fractures of the left radius and ulna, and minimal
hypertrophic arthritis of the left elbow, probably
degenerative with traumatic features. X-rays of the left
forearm revealed healed midshaft fractures of the left radius
and ulna, unchanged since October 1994. X-rays of the left
elbow found minimal hypertrophic arthritis, probably
degenerative with some traumatic features.
A March 1997 VA examination report shows objective findings
of limitation of motion. Supination of the left forearm was
from 0 to 90 degrees, and pronation was from 0 to 30 degrees.
Flexion of the elbow was from 30 degrees to 120 degrees. The
examiner noted a malunion deformity of the left forearm, and
an angulation of the middle third of the forearm. The
diagnosis was mal-united fracture of the left forearm.
The examiner noted that the veteran was right handed and used
the left upper extremity only for assisting. The examiner
opined that the veteran was formerly a driver and it would be
difficult to drive especially with a limitation of pronation
of the left forearm. The x-ray report shows healed midshaft
fractures of the left radius and ulna, unchanged since
November 1995.
Criteria
Residuals of a left forearm injury
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4
(1997). Generally, the degrees of disabilities specified are
considered adequate to compensate for a loss of working time
proportionate to the severity of the disability. 38 C.F.R.
§ 4.1.
In considering the residuals of injury, it is essential to
trace the medical-industrial history of the disabled person
from the original injury, considering the nature of the
injury and the attendant circumstances, and the requirements
for, and the effect of, treatment over past periods, and the
course of the recovery to date. 38 C.F.R. § 4.41. Where an
increase in a service-connected disability is at issue, the
present level of disability is of primary concern. Although
review of the recorded history of a service-connected
disability is important in making a more accurate evaluation,
see 38 C.F.R. § 4.2, the regulations do not give past medical
reports precedence over current findings. See Francisco v.
Brown, 7 Vet. App. 55, 58 (1994).
Disability of the musculoskeletal system is primarily the
inability, due to damage or inflammation in parts of the
system, to perform normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. The functional loss may be due to pain which is
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion. 38 C.F.R.
§ 4.40.
The factors of disability affecting joints are reduction of
normal excursion of movements in different planes, weakened
movement, excess fatigability, swelling and pain on movement.
38 C.F.R. § 4.45. When a diagnostic code provides for
compensation based solely on limitation of motion, the
provisions of §§ 4.40 and 4.45 must be considered, and
examinations upon which evaluations are based must adequately
portray the extent of functional loss due to pain “on use or
due to flare-ups.” DeLuca v. Brown, 8 Vet. App. 202, 206
(1995).
Where an increase in a service-connected disability is at
issue, the present level of disability is of primary concern.
Although review of the recorded history of a service-
connected disability is important in making a more accurate
evaluation, see 38 C.F.R. § 4.2, the regulations do not give
past medical reports precedence over current findings. See
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
Diagnostic Code 5010 directs that arthritis due to trauma is
evaluated as degenerative arthritis. Degenerative arthritis,
established by x-ray findings, will be rated on the basis of
limitation of motion under the appropriate diagnostic codes
for the specific joint or joints involved. 38 C.F.R.
§ 4.71a, Diagnostic Code 5003. Limitation of motion that is
noncompensable under the applicable diagnostic code is
assigned a 10 percent evaluation under Code 5003. Id. In
the absence of limitation of motion, a 10 or 20 percent
evaluation is assigned for x-ray evidence of involvement of 2
or more joints, depending upon whether there are occasional
incapacitating exacerbations. Id.
The Board notes that the veteran’s forearm disorder is due to
an injury where he fractured both the ulna and the radius at
the junction of the proximal middle third. The regulations
provide a 10 percent evaluation for impairment of the minor
ulna manifested by malunion with bad alignment. 38 C.F.R.
§ 4.71a, Diagnostic Code 5211. Similarly, impairment of the
radius manifested by malunion with bad alignment warrants a
10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code
5212.
The veteran is currently evaluated pursuant to limitation of
extension of the forearm under Diagnostic Code 5207. The
normal range of motion of the elbow is from 0 degrees of
extension to 145 degrees of flexion. See 38 C.F.R. § 4.71,
Plate I. Limitation of flexion of the minor forearm to
110 degrees warrants a 0 percent evaluation, and limitation
of flexion of the minor forearm to 100 degrees warrants a
10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code
5206. Limitation of extension of the minor forearm to
45 degrees warrants a 10 percent evaluation. 38 C.F.R. §
4.71a, Diagnostic Code 5207.
Full range of motion of the forearm, with respect to
pronation, is from 0 to 80 degrees, while full forearm
supination is from 0 to 85 degrees. See 38 C.F.R. § 4.71,
Plate I. The schedule of ratings provide a 20 percent
evaluation for pronation of the minor forearm where motion is
lost beyond last quarter of arc and the hand does not
approach full pronation. 38 C.F.R. § 4.71a, Diagnostic Code
5213. Limitation of pronation of the minor forearm
manifested by motion lost beyond middle of arc also warrants
a 20 percent evaluation. Impairment of pronation manifested
by loss of (bone fusion) where the minor hand is fixed in
supination or hyperpronation is rated 30 percent disabling.
Limitation of supination to 30 degrees or less is evaluated
as 10 percent disabling. Id.
Analysis
Based on the medical evidence of record and the veteran’s
statements of symptomatology, the Board finds that the
veteran has submitted a well-grounded claim for increased
disability compensation. 38 U.S.C.A. § 5107(a); Proscelle v.
Derwinski, 2 Vet. App. 629 (1992). The veteran submitted
private medical records in support of his claim. The RO has
obtained reports of VA examinations. The Board finds that
all relevant evidence necessary for an equitable disposition
of the appeal has been requested or obtained and VA has
satisfied its duty to assist.
In the instant case, the Board finds that the preponderance
of the evidence warrants an increased evaluation for the
veteran’s left forearm disability. The Board finds that the
veteran’s left forearm disability is most appropriately
evaluated pursuant to the provisions for impairment of
supination and pronation of the minor forearm.
The March 1997 VA examination report shows that pronation of
the left forearm was from 0 to 30 degrees. Normal range of
motion for pronation of the forearm is from 0 to 80 degrees.
38 C.F.R. § 4.71, Plate I. Limitation of pronation therefore
is less than half of a normal arc of motion. The schedule of
ratings provide a 20 percent evaluation for motion that is
lost beyond the middle of arc. 38 C.F.R. § 4.71a, Diagnostic
Code 5213.
The probative medical evidence also shows that the veteran’s
left forearm disability is manifested by complaints of pain,
and clinical findings of loss of extension and flexion of the
forearm. The radiographic findings show healed midshaft
fractures of the left radius and ulna, and minimal
hypertrophic arthritis of the left elbow. The Board also
notes the presence of the asymptomatic scar on the left
forearm. The probative medical evidence does not show that
these symptoms warrant a higher evaluation than 20 percent.
Moreover, these manifestations appear to be duplicative, or
at minimum, to overlap with the limitation of pronation.
Thus, separate evaluations are not in order as the probative
evidence does not show distinct and separate symptomatology
resulting in increased impairment of the left forearm. See
Esteban v. Brown, 6 Vet. App. 259 (1994).
The probative medical evidence does not show that the
veteran’s left forearm disorder is manifested by neurological
or pathology of the muscles. The March 1997 VA examination
report shows that the range of motion of the elbow was from
30 degrees to 120 degrees. The Board notes that extension
limited to 30 degrees is noncompensable. Similarly, flexion
limited to 120 degrees is noncompensable. See 38 C.F.R.
§ 4.31 (assigning a 0 percent evaluation when the
requirements for a compensable evaluation are not met).
The March 1997 VA examination also found malunion of the left
forearm described as angulation of the middle third of the
forearm. The VA examiner in November 1995 described the
angulation of the left forearm as slight. The Board finds
that slight angulation of the left forearm does not meet the
criteria for malunion of either the radius or ulna which
require bad alignment. Neither does the probative medical
evidence show nonunion of the radius and ulna.
The Board notes that limitation of pronation is predicated on
limitation of motion, and therefore the provisions of §§ 4.40
and 4.45 must be considered, and the medical evidence must
adequately portray the extent of functional loss due to pain
“on use or due to flare-ups.” DeLuca v. Brown, 8 Vet. App.
202, 206 (1995). In this regard, the Board notes that VA
examinations performed in October 1994, November 1995, and
March 1997 do not show that the veteran’s left forearm
disability is manifested by swelling, atrophy of the muscles,
diminished strength, or neurological impairment, or by
objective evidence of pain.
The Board is cognizant of the August 1994 private medical
examination report that found atrophy of the muscles of the
left upper extremity due to peripheral nerve supply
deficiency. The Board finds that this report is outweighed
by the VA examinations which do not corroborate the
August 1994 clinical findings. The Board notes that
functional loss due to pain must be supported by adequate
pathology as evidenced by the visible behavior of the
claimant undertaking the motion. 38 C.F.R. § 4.40. The
medical evidence of record does not support an increased
evaluation on the basis of functional loss due to pain.
Accordingly, the Board finds that the criteria for an
increased schedular evaluation of 20 percent, but not higher,
for limitation of pronation of the left forearm have been
met. 38 C.F.R. § 4.71a, Diagnostic Code 5213. Although the
veteran is entitled to the benefit of the doubt where the
evidence supporting a grant of his claim and the evidence
supporting a denial of his claim are in approximate balance,
the benefit of the doubt doctrine is inapplicable where, as
here, the clear preponderance of the evidence is against an
evaluation higher than 20 percent. Gilbert v. Derwinski,
1 Vet. App. 49, 56 (1990).
In reaching this decision, the Board has considered the
complete history of the disability in question as well as the
current clinical manifestations and the impact the disability
may have on the earning capacity of the veteran. 38 C.F.R.
§§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
Individual Unemployability
Initially, the Board notes that the veteran’s claim for a
total rating for compensation purposes based on individual
unemployability is well grounded within the meaning of the
statutes and judicial construction. 38 U.S.C.A. § 5107(a);
see also Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).
Where the veteran has presented a well-grounded claim, the VA
has a duty to assist the veteran in the development of facts
pertinent to his claim. The Board is satisfied that all
relevant facts have been properly developed. Therefore, no
further assistance to the veteran is required to comply with
the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a).
The Board notes that service connection is currently in
effect for residuals of a left forearm injury currently
evaluated as 20 percent disabling in accordance with this
decision. The veteran contends that this disability renders
him unemployable, therefore warranting a total disability
rating for compensation purposes. The veteran has no other
service-connected disabilities.
To warrant a total rating based on individual
unemployability, the veteran’s service-connected disabilities
must be severe enough, in light of his educational background
and employment history, to render him unable to secure and
follow a substantially gainful occupation. 38 C.F.R.
§§ 3.340, 3.341, 4.16.
Total disability ratings for compensation may be assigned
where the schedular rating for the service-connected
disability or disabilities is less than 100 percent when it
is found that the disabled person is unable to secure or
follow a substantially gainful occupation as a result of a
single service-connected disability ratable at 60 percent or
more. 38 C.F.R. § 4.16(a). The veteran’s service-connected
disability is evaluated at 20 percent disabling; thus, the
veteran does not meet the threshold requirement for a total
disability rating. Id. A veteran may be considered as
unemployable upon termination of employment which was
provided on account of disability, when it is satisfactorily
shown that he or she is unable to secure further employment.
38 C.F.R. § 4.18(b) (1997).
It is the established policy of the VA that all veterans who
are unable to secure and follow a substantially gainful
occupation by reason of service-connected disabilities shall
be rated totally disabled. Therefore, rating boards should
submit to the Director, Compensation and Pension Service, for
extra-schedular consideration all cases of veterans who are
unemployable by reason of service-connected disabilities, but
who fail to meet the percentage standards set forth in
paragraph (a) of this section. The rating board will include
a full statement as to the veteran's service-connected
disabilities, employment history, educational and vocational
attainment and all other factors having a bearing on the
issue. 38 C.F.R. § 4.16 (b) (1997).
The U.S. Court of Veterans Appeals (Court) has held that, in
claims for a total rating based on individual
unemployability, the Board must make a determination without
taking the veteran's age and nonservice-connected
disabilities into consideration, and whether there are
circumstances that put the veteran in a different position
than another veteran with the same disability rating. Van
Hoose v. Brown, 4 Vet. App. 361, 363 (1993). It is
insufficient that the veteran is unemployed or has difficulty
obtaining employment, the issue turns on whether the veteran
is capable of performing the physical and mental acts
required of employment, apart from nonservice-connected
disabilities. Id.
On review of the pertinent evidence of record, the Board does
not find that the veteran's service-connected disability, in
and of itself, is of sufficient severity as to preclude his
engaging in all forms of substantially gainful employment.
In March 1997, the VA examiner noted that the veteran was a
driver and it would be difficult for a driver to work with a
limitation especially pronation of the forearm. Although
this finding points to the adverse affect of the veteran’s
disability on his employment, it does not establish that he
is precluded from engaging in all forms of substantially
gainful employment.
The record also contains the opinion of the August 1994
private examiner who reported that the veteran could no
longer engage in any gainful work because of his disability
which is becoming worse. The Board notes that the medical
findings of this examination report are not corroborated by
the medical evidence of record.
Moreover, the record does not show that the veteran left his
employ as a driver due to his service-connected disability,
or has been denied employment due to his disability.
The Board also notes that the record shows treatment for
hypertension and degenerative arthritis of the shoulders.
These disorders are not service-connected and therefore the
are not considered for purposes of determining whether the
veteran is unemployable as a result of his service-connected
disability.
The Board has also considered the provisions of 38 C.F.R.
§ 3.321(b)(1), regarding the assignment of extraschedular
evaluations. This provision is inapplicable to the veteran’s
service-connected residuals of a left forearm injury. This
disability is not shown to be exceptional or unusual, with
such related factors as marked interference with employment
or frequent periods of hospitalization, as to render
impractical the application of the regular schedular
standards. Id. The record does not reflect hospitalizations
due to the veteran’s left forearm disability. Nor does the
record contain evidence which establishes interference with
the veteran’s employment due to the left forearm disability.
The Board’s evaluation of the evidentiary record does not
permit the Board to conclude that there were any exceptional
or unusual circumstances which would have warranted a
referral of his case to the VA Director of the Compensation
and Pension Service. 38 C.F.R. § 4.14(b). The medication
taken by the veteran is not reported to be excessive by any
competent medical professional. The veteran has been
reported to have previous employment as a driver and, based
on the evidentiary information he has provided, he has
completed four years of high school and may have also
completed four years of college. As reported earlier the
veteran is not seeking employment. For the foregoing
reasons, the Board concludes that there were no unusual
circumstances which have warranted a referral of the
veteran’s case to the VA Director of Compensation and Pension
Service.
Based on this evidence, it is the Board’s judgment that a
preponderance of the evidence shows that the veteran’s
service-connected residuals of a left forearm injury do not
prevent him from obtaining and maintaining substantially
gainful employment consistent with his educational attainment
and occupational background, or place him in a different
position from others with the same disability rating.
38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18. Accordingly, the
Board finds that a total disability rating based on
individual unemployability is neither warranted nor supported
by the evidentiary record.
ORDER
Entitlement to an increased evaluation of 20 percent for
residuals of a left forearm injury is granted, subject to the
regulations governing the payment of monetary awards.
A total disability rating based on individual unemployability
by reason of service-connected disabilities is denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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